Citation Nr: 1307867
Decision Date: 03/08/13 Archive Date: 03/11/13
DOCKET NO. 09-30 039 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to higher initial ratings for posttraumatic stress disorder (PTSD) evaluated as 30 percent disabling from March 31, 2004 to March 15, 2010; as 50 percent disabling from March 16, 2010 to September 3, 2012, and as 70 percent disabling since September 4, 2012.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Emily L. Tamlyn, Counsel
INTRODUCTION
The Veteran served on active duty from January 1951 to September 1952.
This appeal to the Board of Veterans' Appeals (Board) arises from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Pittsburgh, Pennsylvania. In this decision, the RO granted entitlement to service connection for PTSD and assigned a 10 percent rating effective March 31, 2004.
In a July 2011 rating decision, the RO increased the disability rating for the Veteran's PTSD from 10 to 30 percent disabling effective March 31, 2004. In December 2011, the Board remanded this case for further development. In September 2012, the RO assigned a 50 percent rating from March 16, 2010 and a 70 percent rating from September 4, 2012.
As stated in the Board's previous remand, the Veteran's representative alleged in October 2011 that clear and unmistakable error (CUE) had been committed in a March 2008 RO decision that denied service connection for hearing loss and tinnitus. In a January 2013 brief to the Board, the Veteran's representative raised the issue of entitlement to special monthly compensation (SMC); presumably aid and attendance or housebound benefits under 38 U.S.C.A. § 1114(l); 38 CFR §§ 3.350(b), 3.352. The Board's decision below to grant a 100 percent rating for PTSD, also implicates entitlement to these benefits. Buie v. Shinseki, 24 Vet App 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). As these issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them. They are referred to the AOJ for appropriate action.
The Veteran waived AOJ review of evidence submitted in October 2012.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The issues of entitlement to higher initial ratings for PTSD prior to April 3, 2012 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
Since April 3, 2012, there has been total occupational and near total social impairment due to disorientation to time or place, loss of memory of names, longer isolative periods, immobilizing flashbacks, and an intermittent inability to perform activities of daily living.
CONCLUSION OF LAW
The criteria for a total 100 percent rating for PTSD have been met April 3, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.130, DC 9411 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, § 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. § 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). The Board's decision grants the maximum rating for PTSD, further assistance is unnecessary to aid the veteran in substantiating his claim.
Rating Criteria
Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).
If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012).
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability and coordination of rating with impairment of function are expected in all instances. 38 C.F.R. § 4.21 (2012).
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b).
The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130 (2012). PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders.
Under the General Rating Formula, a 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances ( including work or a worklike setting); and inability to establish and maintain effective relationships. Id.
A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).
Ultimately in Mauerhan the Court upheld the Board's decision noting that the Board had considered all of the Veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan v. Principi, at 444.
Applying this analysis to the criteria for the 100 percent rating, it follows that the Veteran would be entitled to that rating if PTSD caused total occupational and social impairment, regardless of whether he had some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms were listed or not.
In this case, the Veteran has been assigned a Global Assessment of Functioning (GAF) scores of 40 (see the September 2012 VA examination report). The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See DSM-IV; Carpenter v. Brown, 8 Vet. App. 240 (1995); and 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes).
An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995).
GAF scores ranging between 31 and 40 indicate some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing school).
In the September 2012 VA examination report, the Veteran's PTSD was determined to be chronic and severe. His alcohol abuse was described as episodic and likely represented his poorly judged efforts to reduce anxiety and associated symptoms of PTSD. He had severe interpersonal social, marital, familial, vocational, and leisure deficits secondary to his PTSD. His GAF was 40 for PTSD alone; for alcohol abuse it was 75.
The examiner differentiated the PTSD from the alcohol abuse but both diagnoses showed the impairments in: memory/attention, new learning, sleep, motivation and mood. He had depression, anxiety, suspiciousness, panic attacks, restricted range of affect, difficulties in establishing and maintaining effective work/social relationships, adapting to stressful circumstances (including work), and intermittent inability to perform activities of daily living, like leaving home when necessary.
The examiner determined the Veteran had occupational and social impairment with deficiencies in most areas (work, school, family relations, etc.) but indicated that there was not total occupational and social impairment. While the examiner again separated the impact of the two diagnoses, the alcohol stemmed from the PTSD; in any case the social and occupational impairment were primarily due to PTSD. Functional impacts were severe and impaired the Veteran's day to day living.
The Veteran did report that relationship with his wife was "very good" although she stopped sleeping with him due to his night restlessness. Other family relationships were also good but he had no close relationships outside the family. He visited several social clubs weekly or monthly. He mostly stayed home and watched television or read the newspaper. He continued to take medication and go to therapy but he also continued to binge drink.
In October 2012, the Veteran's treating psychologist who provided treatment on a contract basis through VA, wrote that he had treated the Veteran since April 3, 2012; a summary of this treatment was provided. The Veteran had major cognitive impairment and mentioned that he suffered a flashback resulting in three weeks of isolation from his family in July. He was unable to perform activities of daily living, had impaired thoughts, long and short term memory loss, as well as disorientation to time and place. In the past, alcohol was a major coping skill.
The September 2012 VA examiner did not check the box on the examination report indicating that there was total occupational and social impairment, but he did describe severe symptoms of PTSD and assigned a GAF indicative of an inability to work and very limited social functioning. Similarly, the treating psychologist described impairment that indicated the Veteran was barely functioning. He reported some symptoms that were examples of those listed in the criteria for a 100 percent rating and also described episodic estrangement from the Veteran's family.
Resolving doubt in favor of the Veteran, the evidence shows that the Veteran has had total occupational and severe social impairment since April 3, 2012. This level of impairment most closely approximates the criteria for a 100 percent rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21.
ORDER
Since April 3, 2012, a total rating of 100 percent for PTSD is awarded.
REMAND
In the December 2011 remand, the Board sought to obtain all records of the Veteran's treatment at the Erie Vet Center.
Records from 1999 show the Veteran was treated at the Vet Center and by Dr. A. In December 2004, another Vet Center record was submitted. In October 2007, a social worker from the Vet Center stated the Veteran had been treated there since 1999.
In January 2012, the AMC sent the Veteran an authorization and consent forms for the Vet Center. Such a form is unnecessary because this treatment, while a different venue from a VAMC or clinic, is VA treatment and VA has an obligation to obtain it under 38 U.S.C.A. § 5103A (see also the May 2012 release of information request for the Vet Center sent by the AMC). The same month, the Veteran returned the forms stating he had no outside treatment other than that at VA. In March, the AMC sent another letter requesting the Veteran return the authorization and consent forms.
The Veteran responded in April, stating that he was now receiving private treatment with Dr. A. and he had been initially sent to Dr. A. by his Vet Center counselor in 1999 but only met with Dr. A. once at that time. He also enclosed the business card and address of Dr. A., but not an authorization and consent form for Dr. A. As explained above, Dr. A. provided a summary of his treatment from April 3, 2012 onward in October 2012.
In May 2012, the AMC requested records from the Vet Center, stating that no release was necessary. The Board finds no conclusive response from the Vet Center in the file and there is no showing that all records from the Vet Center from 1999 onward have been received or that they are unavailable.
Efforts to obtain records in the custody of a Federal entity must continue until they are obtained, unless it is reasonably certain that the records do not exist or that further efforts would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); Pub.L. 112-154, § 505(a)-(b) (Aug. 6, 2012).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
1. Obtain all records of the Veteran's treatment at the Erie Vet Center from 1999 onward and associate them with file.
Efforts to obtain these records must continue until the records are obtained unless it is reasonably certain they do not exist or further efforts would be futile.
If any requested records cannot be obtained, tell the Veteran; inform him of the efforts made to obtain the records and of any additional actions that will be taken with regard to his claim.
2. If there is any period since March 31, 2004, when the disability rating was less than 100 percent, consider whether a total rating for compensation based on individual unemployability is warranted.
3. If any issue on appeal remains denied, issue a supplemental statement of the case (SSOC). Then return the case to the Board if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs